AIM Royal Insulation, Inc.

National Labor Relations Board - Administrative Judge Opinions

May 21, 2010

28-CA-022605 (N.L.R.B. May. 21, 2010)

JD(SF)–17–10
(Phoenix, Arizona)
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
AIM ROYAL INSULATION, INC.
And JACOBSON STAFFING, L.C.,
Joint Employers
and Cases 28-CA-22605
28-CA-22714
INTERNATIONAL ASSOCIATION OF
HEAT & FROST INSULATORS & ALLIED
WORKERS, AFL-CIO, LOCAL NO. 73
John Giannopolis, Esq., for the General Counsel.
Gerald Barrett, Esq., (Ward, Keenan, & Barrett, P.C.)
of Phoenix, Arizona, for the Union.
Thomas M. Rogers and Kristin M. Mackin, Esqs.
(LaSota & Peters PLC) of Phoenix, Arizona,
for Respondent AIM.
Kevin J. Kinney, Esq., (Krukowski & Costello, S.C.)
of Milwaukee, Wisconsin, for Respondent Jacobson.
DECISION
Statement of the Case
WILLIAM G. KOCOL, Administrative Law Judge. This case was tried in Phoenix,
Arizona, on February 8-12 and February 17, 2010. The charges and amended charge were
filed by the International Association of Heat & Frost Insulators & Allied Workers, AFL-CIO,
Local No. 73 (herein the Union) on July 17, September 28, and October 30, 20091 and the order
consolidating cases, consolidated complaint and notice of hearing (herein the complaint) was
issued October 30. The complaint alleges that Aim Royal Insulation, Inc. (herein Aim) and
Jacobson Staffing, L.C. (herein Jacobson) are joint employers and, as clarified by the General
Counsel, alleges that Aim violated Section 8(a)(1) by interrogating employees concerning their
union activities and creating the impression that those activities were under surveillance and
violated Section 8(a)(3) and (1) by failing to reinstate striking employee Jose Gurrola to his
former position or to a substantially equivalent position and failing to consider for hire or hiring
Gurrola, Angel Aizu, Shawn McMillan and nine other named employee-applicants. The
complaint also alleges that Aim maintained several provisions in its employee handbook that
required employees to obtain permission before leaving a jobsite before the designated quitting

1 All dates are in 2009 unless otherwise indicated.
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time and indicated that leaving the jobsite without the requisite permission may be lead to
automatic termination. The complaint alleges that Jacobson violated Section 8(a)(1) by
threatening employee-applicants with loss of employment opportunities because of their union
activities and interrogating employee-applicants concerning those activities, and violated
Section 8(a)(3) and (1) by failing to consider for hire or hiring Shawn McMillan, Luis Bolaňos,
Gustavo Gonzalez, and Aizu. Aim and Jacobson filed timely answers that, as clarified at
hearing, admitted the allegations in the complaint concerning filing and service of the charges,
jurisdiction, labor organization status, joint employer status as it pertains to employees referred
by Jacobson to Aim, and relevant agency status; both denied the substantive allegations of the
complaint.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel2, Aim and Jacobson, I make the
following
Findings of Fact
I. Jurisdiction
Aim, a corporation, is engaged in the business of construction and repair of commercial
insulation systems out of its facility in Phoenix, Arizona, where it annually purchases and
receives goods valued in excess of $50,000 directly from points located outside the State of
Arizona. Aim admits and I find that it is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act. Jacobson, a corporation, is engaged in the operation of
an employment agency, including providing “temporary to permanent” labor, with facilities in
several States including an office located in Phoenix, Arizona, where it annually provides
services to enterprises located within the State of Arizona, including Aim, which in turn are
engaged in interstate commerce within the meaning of Section 2(2), (6), and (7) of the Act.
Jacobson admits and I find that that it is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act. Aim and Jacobson admit and I find that the Union is a
labor organization within the meaning of Section 2(5) of the Act.
II. Facts
A. Background
Michael J. Gibbs is owner and president of Aim and Jeff Herron is vice president and
part owner. Lazaro Campos is Aim’s superintendent; he is in charge of the daily operations and
made decisions concerning hiring of insulators subject to Gibbs’ final approval. During the
relevant time period Aim employed about 15 -20 full time insulators.
Sandy Chavez is Jacobson’s account manager and its only employee at its Phoenix
office. She is responsible for recruiting, interviewing and hiring employees to satisfy the needs
of its clients. Since 2008 Aim and Jacobson have been parties to a contract that provides that
Aim will use the services of Jacobson for temporary and temporary to permanent employees at
Aim’s Phoenix location. Under this contract Aim pays Jacobson an hourly rate for each
employee used by Aim. Jacobson, in turn, pays and provides benefits to the employees.

2 I grant the General Counsel’s unopposed motion to correct transcript that is attached to his
brief.
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Lazaro Campos notifies Chavez when Aim is looking to employ additional temporary
workers. Chavez then initially interviews applicants to determine whether they would satisfy
Aim’s needs and then sends them to Aim. Campos then also interviews the applicants and
decides whether or not to hire them. Aim and Jacobson admit that they are joint employers of
the employees referred by Jacobson and used by Aim.
B. Aim’s Employee Handbook
Aim’s Employee Handbook contains the following provisions:
Employees shall not leave the project other than at designated quitting times, unless
authorization is obtained from the foreman or supervisor.
…
Employees are required to be at their assigned work areas at the beginning of each work
day and shall not [l]eave the designated area without obtaining authorization fro[m] their
foreman or superintendent.
…
Leaving Job Site. Any employee leaving the job site without the approval of the office or
the supervisor may be automatically terminated.
Employees sign a form indicating that they have read and understood the Employee Handbook
and that failure to abide by its rules could result in termination.
Analysis
Aim’s employee handbook forbids employees from leaving the jobsite without permission
and provides that employees who do so without permission may be automatically terminated.
The General Counsel contends that these rules impinge upon the right of employee to strike, a
right that does not require an employer’s permission. In Labor Ready, Inc., 331 NLRB 1656, n.2
(2000), the Board held that a rule that forbids employees from walking off a job under penalty of
discharge violated Section 8(a)(1). More recently, in Crowne Plaza Hotel, 352 NLRB 382, 386-
87 (2008), the Board held that work rules that forbid employees from leaving their work area
without authorization before completion of their shift and from walking off the job violated
Section 8(a)(1). The Board reasoned that:
{T}hese rules unlawfully overbroad because an employee would reasonably read these
rules as, respectively, requiring management’s permission before engaging in such
protected concerted activity, thereby allowing management to abrogate the Section 7
right to engage in such activity, or altogether prohibiting employees from exercising their
Section 7 right to engage in such protected concerted activities.
Id. (footnotes omitted). Applying this case law, it follows that Aim’s rules forbidding employees
from leaving the jobsite without permission under penalty of termination likewise impinge upon
employees’ rights under Section 7 to concertedly engage in a work stoppage. In its brief Aim
cites Bechtel Power Corp., 239 NLRB 1139 (1979). That case is inapposite because it dealt
with a situation involving raising complaints on company time. By maintaining work rules that
prohibit employees from leaving the work area or jobsite without permission, Aim violated
Section 8(a)(1).
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C. Aim’s Hiring Practices
Regarding hiring of insulators, Aim’s general practice is not to accept applications for
employment from persons who walk in its office. To this end Aim has signs posted both on a
window and on a door at its facility indicating that it is not accepting applications. Instead, Aim
relies on rehiring former employees, including those fired for cause, and recommendations from
current employees and supervisors to fill its hiring needs. Applications for these persons are
then completed after the hiring process is started. In addition, Aim began using Jacobson’s
services to find insulators to work temporarily for Aim.
Aim hired the following insulators beginning May 27; this date is important because, as
explained below, beginning on that date and continuing through July a number of union
applicants sought employment with Aim:
1. Manuel Murrieta - July 17 (previously employed by AIM).
2. Mario Chavez – July 8 (previously employed by AIM).
3. Anthony Sandoval – June 10 (previously worked for AIM).
4. Luis Jaime – July 15
5. George Campos – June 16 (previously employed by AIM).
6. Sean Herron – May 27
7. Jacob Ollarsava – July 24
8. William Loy – June 26 (previously employed by AIM).
9. Victor Hernandez – August 10
Aim’s workload was increasing substantially in July and employees were working a lot of
overtime. Lazaro Campos found it necessary to perform insulation work himself; this was
unusual.
Number 1 above, Murietta, was rehired after he had been fired for cause when he did
not appear for work; Murrieta otherwise was a good worker. Murrieta filed a claim for
unemployment insurance with the State of Arizona and Aim indicated that Murrieta had been
fired on May 19, 2008 for:
[C]onsistently being late to work, leaving work early and deficient work performance. He
was warned in writing two times before he was fired. After we fired him he joined
Asbestos Workers Union (Local 73) and has been employed with other insulation
contractors since. For these reasons we protest this claim.
In fact, Aim lost the customer on which Murrieta had been working. Before Murietta was rehired
he told Lazaro Campos “bad things” about the Union. Number 2 above, Chavez, was also
rehired after having been fired for cause. Aim’s records indicate the Chavez was fired on
October 24, 2008, for:
To[o} many customer complaints & employee complaints. Would not do as told, he
would not order material accordingly was always running out of material & was not
working when his title is workin[g] foreman.
Lazaro Campos also knew that Chavez had been in the Union before Aim rehired him, but he
too complained to Campos about the Union before Aim agreed to rehire him. Number 3,
Sandoval, has previously been fired by Aim because he was failing to show up for work.
Number 4, Jaime, was recommended for employment by employee Murietta. Number 5,
George Campos, is the brother of Lazaro Campos, Aim’s superintendent. George Campos had
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been fired earlier by Lazaro because George was not sufficiently productive. Number 6, Sean
Herron, is Jeff Herron’s son and Gibbs’ grandson and works during the summer when he is not
in school. He worked in the warehouse where, among other things, he helped with prefab work
that it typically part on work performed by insulators. Employee Joseph Campos, recommended
number 7, Ollarsava, for employment. Loy, number 8, had earlier been terminated by Aim after
Lazaro Campos discovered that Loy did not appear at a jobsite as scheduled. Lazaro Campos
recommended number 9, Hernandez, for employment.
Armando Torres was originally listed by Aim as a “walk-in” but Lazaro Campos credibly
explained that this was an error and instead Torres was recommended for hire by employee
Juan Torres.
D. Organizing Effort
The Union had a detailed, written organizing plan for Aim. The goal, unsurprisingly, was
to get Aim to sign a contract. The plan included the use of “salts” and “peppers” and described
efforts to get the 30 per cent of employees to sign authorization cards that are needed to trigger
an NLRB election. The plan included the following:
If we don’t have enough support to win an election we should file Unfair Labor Practice’s
to buy time to gain support.
Dale Medley, a business agent for the Union, credibly testified that this meant the Union would
file charges only when there was evidence to support them. In fact, apart from the charges
involved in this proceeding, the Union filed one other charge. That charge was filed on June 27,
2008, and withdrawn on July 8, 2008. Aim contended at trial and argues in its brief that the
Union’s organizing plan served to remove the Union organizing activity, in particular that of Jose
Gurrola described below, from the protection of the Act. However, I have examined plan and
find nothing in it worthy of mention that supports such a conclusion. Also, I reject Aim’s
assertion that I should draw an adverse inference from the Union’s alleged failure to produce
certain minutes that Aim had subpoenaed. Although there was some initial lack of clarity in the
Union’s response, the matter was finally resolved to my satisfaction and I conclude that the
Union has provided Aim with all the requested documents.
Jose Gurrola is an organizer for the International Association of Heat and Frost
Insulators and Allied Workers Union; he has also worked as an insulator. He was assigned to
seek work at Aim and then organize its employees. On May 16, 2008, Gurrola went to Aim’s
office and asked for, was given, and completed an application for employment. This is
notwithstanding the sign posted by Aim indicating that it was not accepting employment
applications. After speaking with Lazaro Campos by telephone Gurrola was hired. At that time
he was neither a former employee nor was he referred for employment by any Aim employee
thereby contradicting Aim’s general hiring practice. Campos did not know that Gurrola was an
organizer for the Union at the time he hired Gurrola. In mid June 2008 Gurrola began wearing
union “paraphernalia” at work. On July 2, 2008, the Union notified Aim by letter that Gurrola had
signed an authorization card and would be soliciting other employees to do so also. At times
during 2008 the Union distributed handbills to employees criticizing Aim’s employment policies
and encouraging employees to join the Union.
Gurrola and the Union planned that Gurrola would go on strike at some point. Gurrola
observed that at times Aim did not provide water for its employees at jobsites where they were
working; he discussed this issue with other employees. Remember that these jobsites are in
the Phoenix area and that this occurred during the summer. On July 17, 2008, the employees
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working for Aim at the Gila River Indian Project, including Gurrola, ran out of water. There were
other contractors working on the site and these contractors provided water for their employees.
These contractors would certainly allow a thirsty employee from another contractor to have
some water if the employee’s own employer had failed to provide water, but it was understood
that each contractor should supply water for its own employees. On July 18 Gurrola met
Joseph Campos, the lead person for Aim at the Gila River Indian Project, at Aim’s office before
starting work. Gurrola picked up some keys to the project because Campos was going to be
late arriving at the project. Joseph Campos told Gurrola that he would fill the jug with water and
bring it to the jobsite later. When Gurrola arrived at the project at around 6 a.m. it was hot
outside and of course Aim had still not placed water on the jobsite for its employees; Gurrola
was also unable to find any dust masks. He called Angel Aizu, organizer for the Union, reported
these observations to him, and indicated that this would be the day he went on strike. They had
previously planned that when Gurrola went on strike Aizu would come to assist Gurrola.
Gurrola then also called Lazaro Campos at about 8:12 a.m. and told him he was on strike
because there was no water and no dust masks at the site. Campos then called Gibbs and
informed Gibbs of the matter and indicated that Aim did not, in fact, have water at the site for its
employees that morning. Gurrola stopped work and began his strike. He and Aizu picketed
outside the jobsite with signs reading “Strike. AIM Royal Insulation.”
On July 18, 2008, Gibbs sent Gurrola a letter regarding the work stoppage that read:
It has come to my attention that you informed the labor superintendent that you were
going on strike because of your allegation that Aim Royal Insulation would not provide
you with drinking water at the jobsite. This is not a true statement. Drinking water has
been provided on site for you. Had you asked the superintendent he would have
advised you that the foreman that brings the water was going to be a half hour late
today. This is your notice that you must contact the superintendent for assignment for
Monday, July 23, 2008. If you do not it may be grounds for dismissal from Aim Royal
Insulation.
Aim terminated Gurrola on July 24, 2008. That same day, July 24, Gurrola went to Aim’s
office with a handwritten note that read “Aim Royal Insulation will provide proper safety
equipment and will also provide water to all their employees to all jobsites being performed.”
Gurrola announced that he would end his strike and return to work if Aim agreed to those
demands. Aim refused to accept the handwritten note. Instead, Gurrola was told that he had
been terminated. Gurrola made a recording of the conversations, and from the transcript of the
recording it is clear that the reason Gurrola was fired was because he went and remained on
strike. Indeed, according to notes made by Gibbs shortly after this event:
[I] said that his actions on the job and the fact that he did not contact Lazaro [Campos]
for placement for employment was (sic) considered abandonment of his position at this
company. He said he didn’t quit and that we were firing him for union activities. He was
told that the union did not matter to us but that we cannot allow employee to arbitrarily
walk of[f] jobs and jeopardize relationships with contractors or employees.
Gurrola then explained to Gibbs that he was on an economic strike for the benefit on Aim’s
employees over the issues of lack of water and masks at the jobsite.
As part of the organizing effort, in 2009 the Union sent letters to governmental agencies
concerning Aim.
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E. Complaint Allegations against Aim
In April 2009 Gurrola called Aim and spoke with Lazaro Campos, Gurrola unconditionally
offered to return to work, but Campos told Gurrola that he no longer worked for Aim. As noted
above, Aim hired a number of insulators over the period of time beginning May 27 through
August 10. On May 27, 2009, Gurrola and Aizu went to Aim’s office; Gurrola made a tape
recording of the conversation that occurred. Gurrola asked for work so he could end his strike
and return to work unconditionally. Aizu also sought employment and left an employment
application. They were told that things were slow and no work was available. Aizu credibly
testified that he would have accepted employment if it were offered. That same day Gurrola
contacted Lazaro Campos by telephone and made an unconditional offer to return to work. On
June 1 and June 9 Aizu called Aim’s office and indicated that he had left an employment
application and asked if Aim was hiring; in both instances he was told that things were slow.
On June 23 the Union faxed applications for employment for Luis Bolaňos, Ezequiel
Macias, Jose Flores, Adrian Anaya, Nathan Collison, Darrel Speakman, Chester McClure,
Pablo Equizabal and John Rohrback to Aim. Earlier, on June 12 Speakman, a member of the
Union, filled out an application for Aim after a layoff and being informed that he would be out of
work for quite a while. He received the application from Aizu who informed him that he would
send it Aim upon completion. Aizu placed the word “organizer” on the top of the application as
well as on the remaining eight applications. Bolaňos likewise filled out an application for Aim at
Aizu’s urging. Aizu told him that he would send the application to Aim. Bolaňos, who was
unemployed at the time he filled out the application, credibly testified that he would accepted
employment there if it had been offered. Jose Flores, Adrian Anaya, John Rohrback, Pablo
Equizabal, Chester McClure, Nathan Cullison, Ezequiel Macias, all also completed applications,
gave them to Aizu, and credibly testified that they would have accepted employment with Aim if
they had been offered positions. It was apparent to Gibbs from the content of the applications
that the Union had sent them. Gibbs admitted that Aim never considered hiring those
applicants, explaining that Aim continued to be able to fulfill its needs under the process that
excluded walk-in applicants. Gibbs retained those applications and kept them on his desk.
Analysis
The complaint alleges that Aim refused to reinstate Gurrola to his former position or to a
substantially equivalent position or to place him on a preferential hiring list after he terminated
his strike and made an unconditional offer to return to work. However, I have concluded that
Aim terminated Gurrola’s employment on July 24, 2008. No charge was filed to challenge the
legality of that termination and the Section 10(b) period has long expired. I may not make a
finding concerning its legality. The rights under Laidlaw Corp., 177 NLRB 1366 (1968), enfd.
414 F.2d 99 (7th Cir. 1969), flow to former strikers who remain employees and not to former
employees. The General Counsel cites Lee A. Consaul Co., 192 NLRB 1130 (1979). In that
case the Board adopted the judge’s finding that strikers who were fired outside the Section
10(b) period but who later made unconditional offers to return to work were nonetheless entitled
to the Laidlaw rights. But this finding is contrary to countless other Board cases that hold that
Laidlaw rights end when a striker has been lawfully fired and here Section 10(b) precludes me
from finding otherwise. It appears, however that the Board later found it significant that in Lee
Consaul there was an “agreement acknowledging the possibility of reinstatement of discharged
strikers constituted "changed circumstances," amounting, in effect, to rescission of the
discharges and restoration of the status of striking employees. (footnote omitted)” Woodlawn
Hospital, 233 NLRB 782, 790 (1977). There is no such agreement in this case. I agree with
Aim’s observation in its brief that:
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If an employee after an unchallenged … termination can receive the right to
reinstatement … by simply walking in and offering unconditionally to return to work,
Section 10(b) is nullified.
I dismiss this allegation.
The complaint alleges that Aim violated the Act when in about April after Gurrola made
his unconditional offer to return to work Lazaro Campos told him that he no longer worked for
Aim. The General Counsel cites H.B. Zachary Co., 319 NLRB 967, 969, enforced in part sub
nom. International Brotherhood of Boilermakers v. NLRB, 127 F. 3d 1300 (11th cir. 1997). But
that case involved a typical Section 8(a)(1) threat that connected discharge with protected
concerted activity. Here, Campos told Gurrola that Gurrola no longer worked for Aim, that
statement was not connected to any activity protected by Section 7. Moreover, as more fully
described above, Gurrola in fact had been terminated by Aim outside the 10(b) period that is
applicable to this case and thus the legality of that discharge cannot be challenged in this
proceeding. Under these circumstances I dismiss this allegation of the complaint.
The complaint next alleges a number of violations concerning employee-applicants. In
Toering Electric Co., 351 NLRB 225 (2007), the Board criticized the practice of labor
organizations in some salting campaigns of submitting batched applications on behalf of
workers who were neither aware of the applications nor interested in employment with the
employer. The Board also criticized applicants for employment that engage in conduct clearly
inconsistent with an intent to gain employment. The Board condemned employment application
practices designed solely to create a basis for unfair labor practice charges and thereby inflict
substantial litigation costs on employers. To remedy these described abuses, the Board placed
an additional burden on the General Counsel to establish that applicants for employment have a
“genuine interest in seeking employment.” In this case I conclude that all the applicants for
employment genuinely sought employment at Aim or, as described below, Jacobson. All
credibly testified that they intended to accept employment from these employers; all were in
personal circumstances where accepting employment seemed entirely reasonable, and none of
the applicants engaged in any conduct that could be considered as inconsistent with accepting
and remaining employees.
In addressing these allegations I next apply FES, 331 NLRB 9 (2000), enfd. 301 F.3d 83
(3rd Cir. 2002). Here, the General Counsel has established that all the applicants had the
experience necessary to perform the work for Aim and Jacobson. The evidence also shows
that Aim was hiring and had concrete plans to hire during the period May 27 through July 15,
the time period specifically covered by the allegations in the complaint. I have described above
how during the time period May 27 through August 10, a time period that I conclude may be
appropriately considered by the complaint allegations, see Zarcon, Inc., 340 NLRB 1222, 1228-
29 (2003), Aim hired about 8-9 insulators.
I now specifically address the allegations to determine whether antiunion animus played
a role in Aim’s failure to hire the applicants for employment. The first complaint allegations
pertain to the May 27 and July 7, 2009, applications for employment to Aim made by Gurrola
and Aizu. As to Gurrola, I again note that he had been employed by Aim previously and had
been fired on July 24, 2008. Under most circumstances my analysis would quickly end because
many employers do not rehire employees that they have fired. But Aim specifically relies on its
practice of doing so as a means of supplying its hiring needs so as to avoid hiring unknown
applicants, including those who might be supporting a union. I have described above the more
specific circumstances of how Aim rehired workers it had earlier discharged for cause during the
very time period it had refused to rehire Gurrola. Because Gurrola was a previous employee
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and because Aim hires workers that have worked for it in the past, even if fired for cause, the
more precise question becomes why did Aim not rehire Gurrola. Gibbs admitted that he never
considered rehiring Gurrola for any of the positions that were filled in the weeks following
Gurrola’s attempt to be rehired. Gibbs explained that “Gurrola has never expressed to this
company a remorse for his actions when he was terminated.” Gibbs later expanded that he did
not consider rehiring Gurrola because:
Attitude. When you have an organization you can’t have people on their own being
disruptive to this organization. With the fact of what was done, what transpired during
that period of time, we determined that we did not want him to be an employee at AIM
Royal.
In context I conclude that Gibbs was referring to the fact that Gurrola had engaged in a strike
against Aim and that was the reason Aim failed to rehire him. I further conclude that the strike
was part of Gurrola’s union activity. See NLRB v. Town & Country Electric, Inc., 516 U.S. 85,
95–96 (1995) (“the employer has no legal right to require that, as part of his or her service to the
company, a worker refrain from engaging in protected activity”).
Aim argues that Gurrola’s strike was unprotected for a number of reasons. First, Aim
argues that Gurrola’s activities were not concerted. But the strike and ensuing picketing were
by their very nature designed to induce other workers to join in. This is especially so because
the reasons for the strike quickly spread across the jobsite that day. This distinguishes the
cases cited by Aim in its brief; they involved safety complaints and did not involve a strike and
picketing. Next, Aim argues that Gurrola’s strike was unprotected because he failed to first
inform Aim of the reason behind the strike. But neither the facts nor the law support this
argument. As a matter of fact I have described above how Gurrola called Lazaro Campos at
8:12 a.m. and informed him of the reason for the strike; this was before Aizu arrived and before
they began picketing at the jobsite. As a matter of law, there is no requirement that employees
first give notice to an employer before engaging in a strike. Aim cites House of Raeford Farms,
Inc., 325 NLRB 463, 467-68 (1998). But there the Board stated:
[W}e do not agree with the judge’s suggestion that an explicit demand made upon the
employer is a necessary prerequisite to a finding of protected activity. See, e.g., McEver
Engineering, Inc., 275 NLRB 921, 925–926 (1985).
Id. at 463, n. 2. Aim also implies that Gurrola’s strike was unprotected because there was water
on the jobsite, albeit not Aim’s water, that was available to Gurrola and because Aim would
have eventually supplied its own water at the site later that day. The fact remains, however,
that the failure of Aim to provide water for its employees at the jobsite, especially in Phoenix
during the summer, is a condition of employee over which employees are entitled to strike. The
Board does not second guess employees to assess whether the matter at issue was really
worthy of complaint. Al Monzo Construction Co., Inc., 198 NLRB 1212, 1214 (1972), enfd. 485
F.2d 680 (3d. Cir. 1973). In summary, I conclude that Gurrola’s strike was protected under the
Act. By failing to hire and to consider hiring Gurrola because he engaged in union activity, Aim
violated Section 8(a)(3) and (1).
I now address the complaint allegations concerning Aizu. In doing so I apply Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), approved in NLRB v. Transportation Management, 462 U.S. 393 (1983). The facts
show that Aizu was a union organizer and Aim knew this. Aim hostility towards the Union is
shown by the unfair labor practices it committed as described above. I conclude the General
Counsel has met his initial burden under Wright Line. I now assess whether Aim has shown
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that it would not have hired Aizu even if he had not been a union supporter. In support of this
defense Aim points to its hiring practice. That practice, as described above, relies on rehiring
former employees, including those fired for cause, and recommendations from current
employees and supervisors to fill its hiring needs. The facial validity of this practice is not
challenged by the General Counsel and appears to be consistent with similar policies that the
Board has found to be lawful. See e.g., T.E. Briggs Construction Co., 349 NLRB 671, n.3
(2007). The General Counsel argues that Aim’s support for this practice is based on Gibbs’
testimony and that his testimony is not credible. While indeed I question Gibbs’ testimony in
other parts of this decision, I do credit Gibbs’ testimony concerning Aim’s hiring practice. This
testimony is corroborated by Lazaro Campos and to some degree by business records. The
General Counsel argues that Gurrola and one other employee were hired in contradiction of this
practice in that they were hired as new employees “off the street.” But these occasional and
sporadic deviations are insufficient to undermine the existence of the general practice. Next,
the General Counsel argues that the result of Aim’s hiring practice is that Aim was able to reject
competent union applicants by hiring back employees that it had fired for cause. But there is no
contention that this policy is facially unlawful and there is no allegation in the complaint that this
practice was adopted for an unlawful purpose. As I understand the law, it does not matter that
the policy, as here, results in the exclusion of qualified union applicants from the hiring process.
Having resolved the issues concerning Aim’s hiring practice, I now use that practice to
determine whether Aim would have excluded Aizu from consideration for hire even if he were
not a union supporter. Because Aizu was neither a former employee nor was he recommended
by a current employee he did not qualify for consideration under Aim’s practice. It follows that
Aim has shown that it would not have hired Aizu or consider hiring him even if he were not a
union supporter. I dismiss these allegations. Similarly, none of the nine employees whose
applications were faxed to Aim by the Union on June 23 fit into Aim’s hiring practice; I dismiss
that allegation in the complaint. The same analysis dictates the dismissal of the complaint
allegations that Aim refused to hire or consider Aizu for hire on about June 1 and June 10.
Returning to the facts of the case, on about July 15 Shawn McMillan called Aim and
spoke with Campos. McMillan said that he wanted to come back to work for Aim. McMillan had
worked for Aim two or three years earlier but had been laid off due to a reduction in force after a
project was completed. Campos told McMillan that he had to talk to Gibbs who was not
available at that time. On about July 16 Gibbs met with McMillan at Aim’s office. McMillan
asked Gibbs if there was any work. Gibbs answered there was none at that time, but he would
talk to Campos and look into getting some work for McMillan. During the course of the
conversation Gibbs said:
I kind of heard that you were part of the union and how is that going for you, and I
(McMillan) told him it’s not really going for me at all because I didn’t have no work at the
time, and I was just trying to get some work any way I could honestly.
The facts in the preceding paragraph are based on McMillan’s credible testimony.
According to Gibbs, after McMillan indicated he wanted to work again for Aim, Gibbs explained
that he did not know what his present labor needs would be, but that he had been told by
Lazaro Campos that Aim needed additional workers. Gibbs said that he would check with
Campos and see if they needed workers. According to Gibbs, during the course of the meeting
McMillan indicated that the Union had approached him and offered him a third year
apprenticeship if he would work for the Union. Gibbs denied there was any quizzing. Based on
my observation of the relative demeanors of Gibbs and McMillan, I do not credit Gibbs’
testimony that there was no quizzing. Gibbs testified that he consulted with Campos and
decided not to respond to McMillan’s request to return to work for Aim. According to Gibbs, this
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was because when McMillan came to the office to pick up his check after being laid off several
years ago McMillan said in “a very dramatic tone” “Do me a favor, lose my phone number.”
Gibbs went on to describe how “[T]here’s no reason for me to have to put up with belligerence.
It was in the normal course of business and I was being subjected to his disdain for being
discharged.” This obvious exaggeration supports my conclusion to discredit Gibbs testimony.
Lazaro Campos testified that McMillan stormed out of the office on that occasion and in a rude
way as he said “lose my number.” McMillan’s version of this is that he was disappointed about
having been laid off and simply stated to Gibbs to “lose his number” after Gibbs told him that
Gibbs would call him if worked picked up. I conclude McMillan’s testimony is again the most
credible. As described above, Aim hired insulators on July 15, July 17, and July 24.
Analysis
The complaint contends that in about mid July Gibbs interrogated employees concerning
their union activities and created an impression among employees-applicants that their union
activities were under surveillance. I have concluded above that Gibbs stated to McMillan that
he had heard that McMillan was part of the union and asked how it was going for him.
Questions concerning union status are not per se violation of the Act. Rather, accompanying
circumstances must be assessed to determine whether the questioning is coercive. Rossmore
House, 269 NLRB 1176 (1984), enfd. sub nom. HERE Local 11 v. NLRB, 760 F.2d 1006 (1985).
In analyzing these allegations I take into account McMillan’s status as an employee-applicant.
The Board has held that employee-applicants, like McMillan, are particularly susceptible to the
coercive effects of interrogations concerning their union support. Gilberton Coal Co., 291 NLRB
344 (1988). I note that Gibbs was the highest ranking official for Aim and had ultimate control
over hiring. I also note that the subject matter was raised by Gibbs and was not part of a
general conversation initiated by McMillan. I conclude that Aim violated Section 8(a)(1) by
coercively interrogating an employee-applicant concerning his support for the union. I dismiss,
however, the allegation concerning the impression of surveillance. I note the circumstances
here that McMillan was openly a member of the Union and had worked on union projects. It
strikes me as unlikely that an employee would then reasonably believe that his union activity
was under surveillance. Rather, it is more a prelude to the interrogation that I have concluded
was unlawful.
I now address the allegations in the complaint that Aim unlawful refused to hire or
consider for hire Shawn McMillan. I have described above how on about July 15 McMillan
sought re-employment with Aim and how Aim was hiring during that time period. McMillan
supported the Union, Aim knew this, and Aim was hostile to the Union. Moreover, the reason
given by Aim to McMillan as to why he was not rehired was false and the reason given at trial,
as explained above, was patently exaggerated. I conclude that the General Counsel has
established his burdens under FES and Wright Line. As a former employee McMillan was
eligible for rehire under Aim’s hiring practice, even if he had been fired for cause. At the trial
and in its brief Aim sought to explain why it nonetheless failed to hire or consider hiring
McMillan. Relying on Gibbs’ testimony, Aim argues that McMillan unlike other former
employees that were rehired despite having been fired for cause, McMillan never expressed
remorse for having told Aim to “lose my number.” But as the General Counsel pointed out,
unlike those other employees Aim never broached the matter with McMillan. In any event,
Gibbs’ testimony in this regard is again wholly incredible. I conclude that by failing to hire and to
consider hiring McMillan because he engaged in union activity, Aim violated Section 8(a)(3)
and (1).
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F. Complaint Allegations against Jacobson
Returning to the facts of the case, on about June 30 Lazaro Campos called Chavez,
Jacobson’s contact person, and requested that insulators be sent to Aim. That same day as
Chavez attempted to fill Aim’s request she spoke to Imuris Garcia. Garcia, a friend of Shawn
McMillan, told Chavez that McMillan was also looking for work as an insulator. 3 On about
July 1 Chavez interviewed Garcia and Marcellino Trujillo and sent them to Aim. Campos
interviewed Garcia and Trujillo, hired them and they started work at Aim the next day.
After referring Garcia and Trujillo, Chavez then called McMillan. At the time Chavez
called McMillan he was with a friend, Mark Waters; McMillan put the call from Chavez on the
speaker phone and Waters was able to hear the conversation. Chavez asked McMillan if he
was looking for insulation work that paid $11 per hour and he replied that he was. At this point
the evidence becomes contradictory. Initially in his testimony, according to McMillan, after
asking about his experience, Chavez asked if he was part of the union; McMillan replied that he
was. Chavez said that was all she could do for him right then and the conversation ended.
Later in his testimony, in response to my question, McMillan stated that;
[Chavez] told me that she would look for work and she’ll call me back because I told her
at the time that I wasn’t really sure if I could join Jacobson Staffing Company or go
through Aim Royal because of my union status, and she, oh, you’re part of the union,
and then she kind of said I can’t really help you then, and hung up on me.
Based on my observation of McMillan’s demeanor, I credit the testimony he gave in response to
my question. This testimony is confirmed to some extent by Water’s testimony. Waters testified
that he recalled an instance when McMillan used the speaker phone feature and remembered
that McMillan said he was looking for a job but the person that he was talking to said they would
not hire McMillan either because he was or was not a union member, Waters could not recall
which it was. According to Chavez, McMillan expressed interest in working but stated that he
was in the union and he was not sure if he could work for a nonunion company. Chavez said
that if he changed his mind he should call her back. But as described below I have generally
not found Chavez to be a credible witness and I do not credit her testimony here either.
Analysis
The complaint alleges that on about July 1, Jacobson through Chavez threatened
employee-applicants with loss of employment opportunities because of their union activities.
I have described above how Chavez told McMillan that because he was part of a union she
could not help him find work. This amounted to telling McMillan that he would not be hired
because of his union status. Such comments violate the Act. J & R Roofing Co, Inc., 350
NLRB 694, 694-95 (2007). By telling an employee-applicant that he could not be hired because
of his union status, Jacobson violated Section 8(a)(1). The complaint alleges that on about July
1 Jacobson unlawfully refused to consider for hire or hire McMillan. I have described above
how Chavez called McMillan and inquired whether he wanted to work for Aim but McMillan said
he was not really sure if he could join Jacobson or go through Aim Royal because of his union
status. I conclude that McMillan did not apply for work on this occasion and I dismiss this
allegation of the complaint.

3 Recall that I have described above how later, on July 15, McMillan applied directly with
Aim and Aim unlawfully refused to hire him.
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Returning to the facts, telephone records establish that McMillan called Jacobson on
July 2 at 11:45 a.m. but McMillan provided no testimony concerning this second conversation.
Rather, McMillan claims that despite the fact that Chavez hung up on him due to his ties with
the Union she nonetheless called him back several days later and asked him to come in and fill
out paperwork right away. According to Chavez, McMillan called her back and said that the f –
ing union was not giving him enough hours so he did not want to be with the f –ing union
anymore and that he needed a f –ing job right then, any job, no matter what it paid. In the light
of the telephone records, the absence of testimony by McMillan concerning the content of the
call, and the unlikelihood that Chavez would hang up on him one day because of his union ties
yet call him back inviting him come in with no change in his union status, I conclude that
McMillan called Chavez on July 2 and renounced his ties to the Union and sought employment.
Aim needed more workers so on July 14 Chavez sent Isidro Ortega and Claudio Rendon
to Aim; both retained by Aim. On that same day, July 14, Chavez called McMillan and told him
to come in and fill out some paperwork right away. Telephone records confirm that the next call
between Chavez and McMillan occurred on July 14, when three calls were made; at 8:55 a.m.,
9:06 a.m, and 12:05 p.m. McMillan went to Jacobson’s office that day and was given paperwork
to complete. After completing the paperwork, according to McMillan, Chavez said:
[H]ow is this going to affect your union status. I asked her what did she mean, and we
kind of cut off the conversation right there and simply jumped in and she said, oh, you
have to watch the safety (video) and you have to do this, trying to avoid my question.
Chavez then told McMillan to go home to get his social security card and that if he did not return
in 20 minutes she would give the job to someone else. McMillan left and then returned with his
social security card. After completing the application process Chavez told McMillan to go home,
that Aim will call him because there is an interview arranged for him there at about 1 p.m. But
after McMillan returned home Chavez called and told him that Aim had backed out and there
was no work for him. The foregoing facts are based on the credible portions of McMillan’s
testimony. In deciding to credit this testimony I have considered Chavez’s testimony.
According to Chavez she did call McMillan who then came to Jacobson’s office and took an
application form but did not complete it because he said he was very busy and had to go pick up
his kids, again using foul language. McMillan returned to the office later that day and completed
the application. Chavez admitted that she told McMillan that he was a good candidate for
employment with Aim. According to Chavez, she then contacted Lazaro Campos and told him
that she had a good candidate but Campos replied that he was only looking for two workers and
he had already hired the first two applicants she had sent earlier that day, sent away another
two applicants but that she should keep that employee’s name on file for possible future use.
According to Chavez, she did not mention McMillan’s name to Campos. Chavez then told
McMillan that she was sorry but Aim already had enough workers; McMillan got angry, used the
f-word and slammed the door on his way out. I again do not credit Chavez’s testimony. It
struck me as exaggerated and conveniently contrived to suit a litigation strategy; her demeanor
was not convincing. McMillan credibly denied saying that he had to pick up his children from
school or that he even has a child in school and he denied slamming the door. On the other
hand, McMillan also denied that he used the f-word with Chavez and denied that the word was
part of his vocabulary. I do not credit this testimony to the extent that it indicates that he never
uses the f-word.
Also on July 14, Luis Bolaňos and Gustavo Gonzalez appeared at Jacobson’s office;
they coincidentally arrived around the same time. Both were sent there by Aizu, who told them
that Aim was looking for workers to hire through Jacobson. Chavez told Gonzalez, who arrived
first, that the company (Aim) had already hired two workers that day and they were going to hire
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two more. Chavez told Bolaňos that they were looking to hire two people to work as insulators.
After completing the paperwork Gonzalez and Bolaňos went into Chavez’s office where she
examined the paperwork and asked questions. Bolaňos’ application indicated that he had
worked for Argus, a union employer. Also recall that Bolaňos’ application was among those that
the Union has sent to Aim on June 23 and that Gibbs had retained copies of those applications.
Chavez told Bolaňos that she wanted to send him for an interview for an insulator position.
Bolaňos testified that three telephone conversations then ensued; Campos’ telephone records
confirm this testimony and show that the first call that occurred between him and Jacobson on
July 14 occurred at 11:40 a.m., followed by calls at 11:49 and 11:53, about the time that
Gonzalez and Bolaňos were in Jacobson’s office. During one of the calls to Aim Chavez
indicated that she had applicants there with insulation experience; she arranged for an interview
for Gonzalez at 1:30 p.m.; Chavez marked “1:30” on Gonzalez’s application, again confirming
Gonzalez’s testimony. After more discussion on the telephone Chavez indicated that Aim was
not really interested in Bolaňos and no interview time was set for him with Aim. That telephone
conversation ended, but shortly thereafter Chavez received a telephone call and she then asked
Gonzalez who sent him for the job and Gonzalez replied “Angel” but he could not remember the
last name. Then he retrieved a business card from his wallet and showed it to Chavez; the card
bore the name of Angel Aizu and it indicated that Aizu was an organizer for the Union; Chavez
then wrote the word “Union” on his application. Chavez then told the person on the telephone
that Angel Aizu from the Union had sent Gonzalez. After Chavez ended the call she told
Gonzalez and Bolaňos that they were no longer interested in interviewing Gonzalez and the
interview was cancelled. Bolaňos commented that maybe it was because they worked for the
union that they did not want them. Chavez did not reply to that comment but said she was
upset because she had to look for more people. Bolaňos asked about other work opportunities.
Chavez asked if he could drive a fork lift; Bolaňos said he did not but could learn. Chavez told
Bolaňos to call her two or three times a week if he was still looking for employment. Gonzalez
then left the office and called Aizu and told him what had occurred. Aizu suggested that
Gonzalez get a copy of the application he had completed. Gonzalez attempted to do so, saying
that he needed it to continue to receive unemployment compensation; Chavez did not give him
a copy of the application but she did assure him that she would confirm that he sought
employment there. Gonzalez and Bolaňos each credibly testified that they were not working at
the time they sought this employment and would have accepted the position if it had been
offered. Afterwards, Bolaňos did call Jacobson to see if other work opportunities were available
but was not referred for employment.
The facts in the preceding paragraph are based on a composite of the testimony of
Gonzalez and Bolaňos. The demeanor of both struck me as witnesses trying their best to relate
factual information. Their testimony was generally corroborative and consistent with telephone
records. Chavez’s own writing confirms that a 1:30 appointment was set for Gonzalez and that
subject of the “Union” came up during the conversation. Significantly, how would Gonzalez
have known that Aim had already hired two workers sent by Jacobson unless Chavez told him?
There is no evidence that he could have learned this information from any other source. I have
considered the testimony of Chavez and Campos. According to Chavez after examining the
applications and interviewing Gonzalez and Bolaňos, Chavez informed them that she would
send them to Aim for an interview. At some point Chavez wrote “Union” on top of the
applications, but she denied that she was presented with Aizu’s business card. According to
Chavez, in the presence of Bolaňos and Gonzalez she then called Campos and told him she
had two great candidates for him; Campos said he had hired the first two and did not need any
more workers. According to Campos, Chavez called and said she had two other applicants and
asked if Aim needed more workers; Campos replied that he did not need any more personnel.
According to Chavez, Gonzalez and Bolaňos then said to each other it was probably because
they were from the union that Campos did not want to interview them; Chavez told them that
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she never mentioned the union to Campos so she did not believe that was why Campos did not
want to interview them. At the trial Chavez explained that she wrote “Union” on the applications
before she spoke to Campos because she considered that a good thing since all applicants with
the union had good work histories and the notation “Union” would remind her that these
applicants had good work records. But in her pretrial affidavit Chavez stated that she wrote
“Union” on the applications after she spoke to Campos and after Gonzalez and Bolaňos
commented that the reason that Campos did not want to interview them was because of the
Union. And Chavez does not credibly explain why she wrote “1:30” on Gonzalez’s application.
Neither Campos nor Chavez explained why it took three telephone calls for Campos to tell her
that he did not need any more workers. For these reasons, and because of their unconvincing
demeanor, I do not credit the testimony of Chavez and Campos.
Analysis
The complaint alleges that on about July 14 Chavez threatened employee applicants
with loss of job opportunities because of their union support. The General Counsel relies on the
events above concerning Gonzalez and Bolaňos where Chavez told them that Aim was no
longer interested in hiring Gonzalez after he disclosed that the Union had sent them to seek
employment. Here, the intimate connection of the Union with Chavez’s announcement to the
employees that their interviews were cancelled would reasonably tend to indicate to them the
cancellation was because of the Union. By telling employee-applicants that they lost
employment opportunities because of their support for the Union, Jacobson again violated
Section 8(a)(1). Next the complaint alleges that on about July 14 Chavez unlawfully
interrogated employee-applicants. I concluded above that Chavez did ask McMillan how
applying for work with Jacobson would affect his union status but then changed the subject
when McMillan asked why it mattered. I recognize that McMillan himself raised the issue of his
union affiliation in earlier conversations with Chavez when he expressed concern over whether
he could both maintain that affiliation and work with Jacobson and Aim. On the other hand, the
Board has held that employee-applicants, like McMillan, are particularly susceptible to the
coercive effects of interrogations concerning their union support. And Chavez had earlier
unlawfully threatened McMillan concerning his union status. Finally, Chavez was the highest
Jacobson official at the location and she had the authority to decide whether or not to refer
McMillan for employment. Under these circumstance I conclude that by coercively interrogating
an employee-applicant concerning his union status, Jacobson violated Section 8(a)(1). Zarcon,
Inc., 340 NLRB 1222 (2003). The complaint alleges that Jacobson refused to hire or consider
for hire Bolaňos, Gonzalez, and McMillan.4 As to the allegation that Jacobson refused to hire
these applicants, the General Counsel concedes in his brief that “Workers are not hired by
Jacobson until they have received a commitment from the client to retain the specific
employee.” Because Aim never hired these workers it follows that Jacobson has shown that it
would not have hired these employees even if they had not been union supporters. I dismiss
this allegation. The allegation that Jacobson refused to consider these applicants for
employment is not supported by the evidence. To the contrary, the evidence shows that
Jacobson fully considered them for hire and was ready to refer them to Aim. I dismiss this
allegation too. The General Counsel cites Capitol-EMI Music, 311 NLRB 997, 1000 (1993),
enfd. 23 F.3d 399 (4th Cir. 1994), arguing that under certain circumstances both employers in a

4 As clarified at the hearing, the General Counsel does not allege that Aim independently
violated the Act by rejecting these applicants. In his brief the General Counsel does not argue
that Aim did so. Rather, he relies solely on a “joint employer” theory that I reject for reasons
described below. And even initially, before the clarifications the complaint specified that the
word “Respondents” referred to Aim and Jacobson only in their capacity as “joint employers.”
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joint-employer relationship may be liable for unfair labor practices committed by only one. That
is indeed correct. But the problem here is that there is no evidence that Aim and Jacobson
were joint employers during the prehire stage. The precise stipulation received into evidence
here is:
Respondent Jacobson is a joint employer with Respondent Aim Royal with
respect to those individuals that were assigned to the Aim Royal workplace.
None of these individuals were ever assigned to Aim’s workplace. I therefore reject the General
Counsel’s argument.
Returning once again to the facts of this case, on July 15 Aizu went to Jacobson with an
application he had received from Chavez the day before. On the application he listed his name
as Angel A. Garcia; Garcia is his mother’s maiden name. Aizu did this to avoid being identified
as a union agent. Aizu told Chavez that he wanted to work as an insulator. Chavez accepted
the application and asked Aizu to follow him to an office area. As they were walking Chavez
asked Aizu if he belonged to the Union. Aizu answered “No.” He then asked Chavez if it
mattered and Chavez replied “No.” Chavez explained that she asked the question because the
union workers had more experience. Chavez also asked Aizu some questions about his
background and experience. Chavez commented that Aizu was already making good money
after Aizu mentioned that he was making $22 per hour. Chavez said that she had only filled
insulator jobs that were paying $11 per hour. Chavez said that she did not have jobs right then,
that she liked Aizu’s background and skills, and that he should call her three times a week to
see if any jobs became available. After interviewing Aizu, Chavez wrote “not with union” on the
second page of Aizu’s application. After the interview Aizu did not call Chavez as she had
requested. However, on about July 31 Aizu returned to Jacobson’s office accompanied by
about seven others wearing union tee shirts. Chavez told Aizu that he was already in the
system and did not have to be there again and reminded him that when she spoke to him earlier
she asked him to call her three times a week but he never did call. The others completed
applications. There is no allegation in the complaint concerning the July 31 incident. The facts
in this paragraph are based on Aizu’s credible testimony, his demeanor appeared convincing
and his recitation of events seemed to flow naturally and without exaggeration.
Analysis
The complaint alleges that on July 15 Chavez again interrogated employee-applicants
concerning their union activity. In support of this allegation the General Counsel relies on the
interview of Aizu by Chavez. As more fully described above, during that interview Chavez
asked Aizu if he was in the union or part of a union and Aizu replied that he was not. Aizu
asked if that mattered; Chavez replied that it did not, but that if you worked with the union you
have more experience. Here, unlike other instances of coercive interrogation described above,
Chavez coupled here question with the assurance that his union status did not matter to her and
explained that she asked the question because she felt union workers had more experience.
Under these circumstances I cannot conclude that the questioning had the tendency to be
coercive. In any event any finding here is cumulative and does not alter the remedy in this
case. I dismiss this allegation. Finally, the complaint alleges an unlawful failure to hire Aizu or
to consider him for hire. For reasons described in the preceding “Analysis” section, I dismiss
this allegation. Moreover, Chavez informed Aizu, as she had informed others, to call her three
times a week to show a continuing interest. He admittedly failed to do so.
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Conclusions of Law
1. Respondent Aim has engaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act by:
(a) Maintaining overly broad work rules that prohibit employees from leaving the work
area or jobsite without permission.
(b) Coercively interrogating an employee-applicant concerning his support for the
union.
2. Respondent Aim has engaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(3) and (1) and Section 2 (6) and (7) of the Act by refusing to consider
for hire and by refusing to hire Jose Gurrola and Shawn McMillan because they engaged in
union activity.
3. Respondent Jacobson has engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act by:
(a) By telling an employee-applicant that he would not be hired because of his union
status.
(b) By coercively interrogating an employee-applicant concerning his union status.
(c) By telling employee-applicants that they lost employment opportunities because of
their support for the Union.
Remedy
Having found that Respondent Aim has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act. Because of the significant number of employees that speak
Spanish, I shall require that the “Notices to Employees” be posted both in English and Spanish.
I have concluded that Respondent Aim has maintained unlawful rules in its employee handbook;
to remedy this violation I apply Guardsmark, LLC, 344 NLRB 809, 812 fn. 8 (2005). The
General Counsel argues that notices to employees correcting the rules should be in both
Spanish and English, but I deny this request. First, the General Counsel cites no case authority
to support this contention. I note that there is no evidence that Aim’s employee handbook is
provided to employees in Spanish as well as English. I further note that I require that the
Notices to Employees be posted in Spanish as well as English. Under these circumstances
I believe that this violation will be fully remedied.
Having found that Respondent Aim discriminatorily refused to consider for hire and hire
Jose Gurrola and Shawn McMillan, Respondent Aim must offer them instatement and make
them whole for any loss of earnings and other benefits. The duration of their backpay period
shall be determined in accordance with Oil Capitol Sheet Metal, Inc., 349 NLRB 1348 (2007).
Back pay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), and
interest shall be computed in accordance with New Horizons for the Retarded, 283 NLRB 1173
(1987). The instatement of discriminatees is subject to defeasance if, at the compliance stage,
the General Counsel fails to carry his burden of going forward with evidence that they would still
be employed by Respondent Aim if he had not been the subject of discrimination. Oil Capitol,
supra, slip op. at 7.
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Having found that the Respondent Jacobson has engaged in certain unfair labor
practices, I find that it must be ordered to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act. Because of the number of Spanish speaking
employees, I shall require that the Notices be posted both in English and Spanish.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended.5
ORDER
The Respondent, Aim Royal Insulation, Inc., Phoenix, Arizona, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Maintaining overly broad work rules that prohibited employees from leaving the
work area or jobsite without permission.
(b) Coercively interrogating employee-applicants concerning their support for the
union.
(c) Refusing to hire, or to consider for hire, job applicants because of their union or
other protected concerted activities.
(d) In any like or related manner interfering with, restraining, or coercing employees
in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Rescind the employee handbook’s rules that prohibit employees from leaving the
work area or jobsite without permission.
(b) Furnish all current employees with inserts for the current employee handbook
that (1) advise employees that the unlawful rules have been rescinded, or (2) provide the
language of lawful rules; or publish and distribute revised employee handbooks that (1) do not
contain the unlawful rules, or (2) provide the language of lawful rules.
(c) Within 14 days from the date of the Board’s Order, offer Jose Gurrola and Shawn
McMillan employment in the position in which they would have been hired in the absence of
discrimination against them or, if that job no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or privileges previously enjoyed.
(d) Make Jose Gurrola and Shawn McMillan whole for any loss of earnings and other
benefits suffered as a result of the discrimination against him in the manner set forth in the
remedy section of the decision.

5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
JD(SF)–17–10
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(e) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful refusals to hire and consider for hire, and within 3 days thereafter
notify the employees in writing that this has been done and that this unlawful conduct will not be
used against them in any way.
(f) Preserve and, within 14 days of a request, or such additional time as the
Regional Director may allow for good cause shown, provide at a reasonable place designated
by the Board or its agents, all payroll records, social security payment records, timecards,
personnel records and reports, and all other records, including an electronic copy of such
records if stored in electronic form, necessary to analyze the amount of backpay due under the
terms of this Order.
(g) Within 14 days after service by the Region, post at its facility in Phoenix, Arizona,
copies of the attached notice marked “Appendix A.”6 Copies of the notice, on forms provided by
the Regional Director for Region 28, after being signed by Respondent Aim’s authorized
representative, shall be posted by Respondent Aim and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent Aim to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, during the pendency of these
proceedings, Respondent Aim has gone out of business or closed the facility involved in these
proceedings, Respondent Aim shall duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by Respondent Aim at any time since
January 20, 2009.
(h) Within 21 days after service by the Region, file with the Regional Director a
sworn certification of a responsible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended7
ORDER
The Respondent, Jacobson Staffing, L.C., its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Telling employee-applicants that they will not be hired because of their union
status.

6 If this Order is enforced by a judgment of a United States court of appeals, the words in the
notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
7 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
JD(SF)–17–10
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(b) Coercively interrogating employee-applicants concerning their union status.
(c) Telling employee-applicants that they lost employment opportunities because of
their support for the Union.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its facility in Phoenix, Arizona,
copies of the attached notice marked “Appendix B”8 Copies of the notice, on forms provided by
the Regional Director for Region 28, after being signed by Respondent Aim’s authorized
representative, shall be posted by Respondent Aim and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent Aim to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, during the pendency of these
proceedings, Respondent Aim has gone out of business or closed the facility involved in these
proceedings, Respondent Aim shall duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by Respondent Jacobson Staffing,
L.C. since July 1, 2009.
(b) Within 21 days after service by the Region, file with the Regional Director a
sworn certification of a responsible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
Dated, Washington, D.C., May 21, 2010.
____________________
William G. Kocol
Administrative Law Judge

8 If this Order is enforced by a judgment of a United States court of appeals, the words in the
notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
JD(SF)–17–10
(Phoenix, Arizona)
APPENDIX A
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT maintain overly broad work rules that prohibit employees from leaving the work
area or jobsite without permission.
WE WILL NOT coercively interrogate employee-applicants concerning their support for the
union.
WE WILL NOT refuse to hire, or to consider for hire, job applicants because of their union or
other protected concerted activities.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights set forth above.
WE WILL, within 14 days from the date of this Order, offer Jose Gurrola and Shawn McMillan
employment in the positions in which they would have been hired in the absence of
discrimination against them, or, if that job no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or privileges they would have been entitled
if they had not been discriminated against.
WE WILL make Jose Gurrola and Shawn McMillan whole for any loss of earnings and other
benefits suffered as a result of the discrimination against them, less any net interim earnings,
plus interest.
WE WILL, within 14 days from the date of the Board’s Order, remove from our files any
reference to our unlawful refusals to hire and to consider for hire Jose Gurrola and Shawn
McMillan and WE WILL, within 3 days thereafter, notify them in writing that this has been done
and that this unlawful conduct will not be used against them in any way.
WE WILL rescind the employee handbook’s rules that prohibit employees from leaving the work
area or jobsite without permission and WE WILL furnish all current employees with inserts for
the current employee handbook that (1) advise employees that the unlawful rules have been
rescinded, or (2) provide the language of lawful rules; or publish and distribute revised
employee handbooks that (1) do not contain the unlawful rules, or (2) provide the language of
lawful rules.
JD(SF)–17–10
(Phoenix, Arizona)
Aim Royal Insulation, Inc.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to
enforce the National Labor Relations Act. It conducts secret-ballot elections to determine
whether employees want union representation and it investigates and remedies unfair labor
practices by employers and unions. To find out more about your rights under the Act and how
to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Phoenix, Arizona Regional office set forth below. You may also obtain information from the
Board’s website: www.nlrb.gov.
2600 North Central Avenue, Suite 1800, Phoenix, Arizona 85004-3099
(602) 640-2160, Hours: 8:15 a.m. to 4:45 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF
POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS
PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE
OFFICER, (602) 640-2146.
JD(SF)–17–10
(Phoenix, Arizona)
APPENDIX B
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT tell employee-applicants that they will not be hired because of their union status,
WE WILL NOT coercively interrogate employee-applicants concerning their union status.
WE WILL NOT tell employee-applicants that they lost employment opportunities because of
their support for the Union.
Jacobson Staffing, L.C.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to
enforce the National Labor Relations Act. It conducts secret-ballot elections to determine
whether employees want union representation and it investigates and remedies unfair labor
practices by employers and unions. To find out more about your rights under the Act and how
to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Phoenix, Arizona Regional office set forth below. You may also obtain information from the
Board’s website: www.nlrb.gov.
2600 North Central Avenue, Suite 1800, Phoenix, Arizona 85004-3099
(602) 640-2160, Hours: 8:15 a.m. to 4:45 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF
POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS
PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE
OFFICER, (602) 640-2146.